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1979 DIGILAW 1081 (ALL)

Dharam Dei v. Shanta

1979-10-09

I.B.SINGH

body1979
JUDGMENT I.B. Singh, Member. - This is a defendant's Second Appeal against Judgment and decree dated May 17, 1978 passed by Additional Commissioner, Faizabad Division dismissing the appeal of the defendant against Judgment and decree dated July 17, 1976 passed by S.D.O., Ram Sanehi Ghat, district Barabanki in a suit under Sections 229-B/209 of Act I of 1951. 2. Plaintiff-respondent Smt Shanta Devi had filed the suit on July 1, 1968 against her mother Smt. Dharamdei after the death of her father Fakerey who had died in 1956 with the allegations that Dharam Dei had remarried with Chauhan in 1957, therefore, she was sole Sirdar of the land in suit, that she was the minor and was living with her mother even after her remarriage. 3. I have heard of learned counsel for the parties and have perused the record. 4. The following facts are admitted to be proved. Fakerey died in 1956. Plaintiff Smt. Shanta was born on May 21, 1947 and became major on May 21/22, 1965. A suit was filed on June 3, 1967 which was withdrawn on February 27, 1968 with permission to file a fresh suit and the present suit was filed on July 1, 1968. It has been argued on behalf of the appellant that Section 14 Limitation Act was not applicable as the first suit was withdrawn by the plaintiff-respondent herself and order XXIII, Rule 2 was applicable and the period in between of the filing of the 1st suit and withdrawing that suit cannot be excluded. Reliance has been placed on A.I.R. 1934 Allahabad, page 688 (F.B.) and A.I.R. 1928 Allahabad page 402 and that Section 6 of the Limitation Act was applicable read with Section 8 of that Act and 3 years limitation from the cessation of the disability was applicable for filing the suit and that limitation expired on May 21, 1968 and as this suit was filed on July 1, 1968. It was beyond time and should have been dismissed by the courts below. Secondly it was argued that defendant's oral evidence was not considered by the first appellate court and its findings are, therefore, liable to be set aside. 5. It was beyond time and should have been dismissed by the courts below. Secondly it was argued that defendant's oral evidence was not considered by the first appellate court and its findings are, therefore, liable to be set aside. 5. It was argued on behalf of the plaintiff-respondent that notice under Section 80, C.P.C. was given by the plaintiff as required by law, therefore, according to Section 15(2) of the Limitation Act, the period of notice shall be excluded and thus the limitation is extended after May 21, 1968 by 60 days required for notice to be given to the State under Section 80 C.P.C. and the suit if would have been filed on July 22, 1968 even then it would have been within time and as it was filed on July 1, 1968 it was well within time. It was further argued that the suit was not barred by Section 49 of the C.H. Act and the oral and documentary evidence of parties was considered by the first appellate court and its finding cannot be set aside in second appeal when it is concurrent finding affirming the finding of the trial court. According to Sections 6 and 8 of the Limitation Act 3 years limitation is provided for filing the suit after cessation of minority or any other disability. There is no dispute about it. 6. Section 14 of the Limitation Act is not applicable to cases where the plaintiff withdraws the suit with permission to file a fresh suit and to such cases order XXII, Rule 2 of the C.P.C. is applicable which lays down that 'any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted'. To such second suit filed after withdrawing the first suit with permission to file a fresh suit Section 14 of the Limitation Act is not applicable. 7. To such second suit filed after withdrawing the first suit with permission to file a fresh suit Section 14 of the Limitation Act is not applicable. 7. In computing the period of limitation for any suit of which notice has to be given in accordance with the requirements of any law to the State Government the period of such notice shall be excluded according to Section 5(2) of the Limitation Act which runs as follows:- "In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded." 8. The present suit being under Section 229-B/209 of Act I of 1951. The State Government is a necessary party and giving of notice to the State Government under Section 80, C.P.C. before filing the suit is mandatory and the period of such notice, i.e., at least of 60 days shall be excluded in computing the period of limitation for filing the suit, therefore, the cessation of disability of the plaintiff who became major on May 21/22, 1965 and as notice was given in the present case to the State Government under Section 80, C.P.C. as is averred in the plaint. The period of 60 days shall be excluded, therefore, the limitation for filing the suit after 3 years of the cessation of disability shall be extended by 60 days more than the period required for giving the notice to the State Government under S. 80, C.P.C. and thus the suit would have been within time up to July 22, 1968 and the present suit was filed on July 1, 1968, therefore was well within time and the argument on behalf of the appellant on the point of limitation fails. 9. As regards bar of Section 49 of the C.H. Act the findings of the courts below could not be assailed and the argument that oral evidence on behalf of the descendant was not considered is not correct. The first appellate court did consider the oral and documentary evidence of the parties and its findings therefore cannot be assailed. 9. As regards bar of Section 49 of the C.H. Act the findings of the courts below could not be assailed and the argument that oral evidence on behalf of the descendant was not considered is not correct. The first appellate court did consider the oral and documentary evidence of the parties and its findings therefore cannot be assailed. 10. In view of the above, this appeal has got no force and it is liable to be dismissed and is hereby dismissed with costs and the finding and decree of the lower appellate court are hereby confirmed.